How Did 3-D-Printed Guns Become a Free Speech Issue?

In 2012, Defense Distributed, a nonprofit organization, began posting online free downloads of computer files — codes — that would enable users to easily produce their own firearms and firearm components with 3-D printers.

In May 2013, the State Department informed Defense Distributed that sharing these files in this particular manner violated provisions of the Arms Export Control Act.

And just like that, 3-D-printed guns became a free-speech issue wrapped up in all the societal trappings of a Second Amendment debate.

In short, the underlying dispute was one of interpretation: Were the codes for 3-D-printed guns “technical data” for purposes of the United States Munitions List, and did making them available for international download constitute “exportation” of that regulated technical data? Defense Distributed argued that the codes weren’t regulated technical data, and that even if they were, the prohibition on publishing them was an unconstitutional prior restraint on speech.

At no point did anyone question the legality of manufacturing firearms for personal use, whether with a 3-D printer or through other means.

In fact, after spending multiple paragraphs discussing the process of 3-D printing firearms, the Fifth Circuit very clearly stated: “Everything discussed above is legal for United States citizens and will remain legal for United States citizens regardless of the outcome of this case.”

While the government has since reached a settlement agreement with Defense Distributed — a settlement some states have filed their own lawsuit to stop — it’s important to understand the reality of the initial lawsuit. This was, is and will continue to be a question of speech, and whether and when the government can prohibit speech about how to conduct a lawful activity.

The right to free speech protects far more than mere words. At its core is the guarantee that the government may not punish or prohibit the free dissemination of information, the expression of ideas or the use of certain modes of communication. As the U.S. Supreme Court explained in Texas v. Johnson, the First Amendment protects both literal and symbolic speech. As long as the speaker intended to convey a particular message and that message is likely to be understood by those who view it, then it is speech.

But, arguably, computer code is pure speech.

Code is simply information translated into a language for computers. Like human languages, the “languages” of code are diverse. They exist in many different families and styles, but all of them are capable of expressing the same ideas in different ways. The information is not depicted as words, nor does it necessarily exist in a physical, tangible format.

It is, rather, a sequence of symbols that form an instruction for a computer, which the computer then executes. In so many words, code is the way in which humans communicate with the computer, but this communication can also be read and understood by humans who “speak” the particular code. And in this sense, the code itself is “speech” that conveys information which can readily be interpreted by computers or humans.

On its face, it would seem that if Defense Distributed published a how-to pamphlet on 3-D printing firearms, and included in that pamphlet the literal step-by-step code sequencing for the reader to manually plug into the computer, it would be protected speech.

What, then, is the practical difference between skipping this step and allowing the downloader to directly input the code without reading it?

There isn’t one.

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